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School

University of Toronto St. George

Department

Political Science

Course

POL207Y1

Professor

Randall Hansen

Semester

Winter

Description

Why Liberal States Accept Unwanted Immigration
Christian Joppke *
One of the more popular watchwords of our time is that the nation-state is in
decline--"too big" to solve regional problems, "too small" to solve global
problems, as the topographical metaphor goes. A related argument is often
made regarding an increasing incapacity of states to control immigration.
"Strangers at the gate" was the alarmist cry heard in the wake of 1989 and
all that. The Economist (March 15, 1991) showed a ramshackle border
guardhouse being overrun by a giant bus bursting with all sorts of foreign-
looking (and strangely cheerful) characters. Such hyperbole has since
disappeared, partially as a result of tightened procedures for asylum across
Western states. But there still seems to be a gap between a restrictionist
control rhetoric and an expansionist immigration reality. An influential
comparative volume on immigration control argues: "[T]he gap between
the goals of national immigration policy . . . and the actual results of
policies in this area (policy outcomes) is growing wider in all major
industrialized democracies." Why do the developed states of the North
Atlantic region accept more immigrants than their generally restrictionist
rhetoric and policies intend?
The phenomenon of unwanted immigration reflects the gap between
restrictionist policy goals and expansionist outcomes. Unwanted
immigration is not actively solicited by states, as in the legal quota
immigration of the classic settler nations. Rather, it is accepted passively by
states, either for humanitarian reasons and in recognition of individual
rights, as in asylum-seeking and family reunification of labor migrants, or
because of the states' sheer incapacity to keep migrants out, as in illegal
immigration. The gap hypothesis can thus be reformulated2as the question,
Why do liberal states accept unwanted immigration? [End Page 266]
That states accept unwanted immigration contradicts one of their core
prerogatives: the sovereignty over the admission and expulsion of aliens. As
Hannah Arendt wrote with an eye to its totalitarian aberrations,
"Sovereignty is nowhere more absolute than in3matters of emigration,
naturalization, nationality, and expulsion." Does the acceptance of
unwanted immigration indicate a decline of sovereignty? A quick "yes," as
in David Jacobson's Rights across Borders, is premised on a simplistic and
static notion of sovere4gnty, thus denying its historical variability and
chronic imperfection.
To answer the question fully, two things should be considered. First, it is
important to distinguish between two separate aspects of sovereignty, formal
rule-making authority and the empirical capacity to implement rules. The
former belongs to international relations theory, in which sovereignty is the
defining characteristic of individual states as the units of the international
state system; the latter falls within the domain of political and historical sociology, which has preferred the notions of state strength, capacity, or
autonomy to investigate the historically varying embodiments of the modern
state. Gary Freeman has demonstrated that in both aspects there is little
evidence for a decline of sovereignty regarding immigration control: the 7
decision to accept or reject aliens has not been relegated to actors other than
the state, and the infrastructural capacity of modern states has not decreased,
but increased, over time. Second, whether seen as judicial authority or
empirical capacity, sovereignty has rarely been as absolute as conveyed by
Arendt's characterization. Internationally, the exigencies of state
interdependence have always put the brakes on erratic expulsion or
nonadmittance practices because hostility against an alien might be [End
Page 267] interpreted as hostility against her state. In addition, international
law prohibits both expulsion or nonadmittance on grounds of race and
the refoulement of the victims of political persecution in other states. Not
only states, but also individuals, are legal subjects under international law--a
novelty of the postwar era--and states are increasingly obliged to respect an
emergent "law of migrants." Domestically, Western states qua
constitutional states are bound by the rule of law, which in impor9ant
respects protects the rights of persons and not just of citizens.
Various authors have argued that global constraints force states to accept
unwanted immigration. Saskia Sassen has identified two such external
constraints on state sovereignty: econ10ic globalization and the rise of an
international human rights regime. The penetration of peripheral countries
by multinational corporations has created the push of an uprooted and
mobile labor force seeking entry into the core countries of the world system.
In addition, the secondary labor market in the receiving countries provides a
powerful pull for immigrants. An emergent international human rights
regime protects migrants, independent of their nationality, limiting the
discretion of states toward aliens and devaluing national citizenship.
Echoing the work of Jacobson, Sassen argues that the basis of state
legitimacy has undergone a shift "from an exclusive emphasis on the
sovereignty of the people and right to self-determination . . . to rights of
individuals regardless of nationality." 11Taken together, economic and
political globalization "reduce[s] the autonomy of the state in immigration
12
policy making," despite the state's desperate attempts to renationalize this
policy area under the sign of populist restrictionism.
The diagnosis of globally diminished sovereignty indicates that the West has
partially created what it seeks to contain--international migration. But it
does not answer the question as to why Western states accept unwanted
immigrants. First, the space-indifferent logic of globalization cannot explain
why some states, such as the immigrant-receiving states of the oil-producing
Middle East, are very efficient at [End Page 268] keeping out, or sending
13
back, unwanted immigrants. Only liberal states are plagued by the
problem of unwanted immigration. Second, globalists operate with a hyperbolic notion of strong sovereignty that never was. In terms of
economic transactions, the world of the late nineteenth century was no less
global than the world one hundred years later. 14If the Bonn Republic
allowed its guest workers to stay, while Wilhelmine Germany practiced
resolute rotation and mass expulsions, a state weakened by economic
globalization cannot be the explanation. The state always had to vindicate
itself within and against an inherently globalizing capitalism. Third, and
related to this, the very reference to economic factors is insufficient to
explain why states accept immigrants, wanted or unwanted. Economic
globalization explains the mobilization of potential immigrants in the
sending societies, as well as the interest of domestic employers in acquiring
them, but not their actual acceptance by the receiving states. Unless one
subscribes to the questionable view that the state is always a tool of
capitalism, the task would be to identify the domestic processes by which,
say, expansionist employer interests cancel out the restrictionist interests of
the public in specific times and places. But then sovereignty would turn out
to be internally, not externally, diminished. Fourth, the international human
rights regime is not so strong as to make states fear and tremble. Jack
Donnelly characterized it as a "relatively strong promotional regime," which
rests on widely accepted norms and values, but lacks implementation and
enforcement powers. 15 Devoid of hard legal powers, the international
16
human rights regime consists of the soft moral power of discourse. This is
better than nothing. But globalists have been content with listing formal
treaty and convention titles, avoiding the "detailed process-tracing" by
which their soft power may become domestically effective. 17 Perhaps there
would be little process to trace. For instance, the recent tightening of asylum
law and policy across Western states demonstrates that these states have
been extraordinarily inventive in circumventing the single strongest norm of
the international human rights regime, the non-refoulement
18
obligation. [End Page 269]
In the following, I propose an alternative explanation. The capacity of states
to control immigration has not diminished but increased--as every person
landing at Schipohl or Sidney airports without a valid entry visa would
painfully notice. But for domestic reasons, liberal states are kept from
putting this capacity to use. Not globally limited, but self-limited
sovereignty explains why states accept unwanted immigrants.
Gary Freeman identified the political process in liberal democracies as one
major element of self-limited sovereignty. 19In contrast to the globalist
diagnosis of vindictive yet ineffective restrictionism in Western states,
Freeman starts with an opposing observation that the politics of immigration
in liberal democracies is, in fact, "broadly expansionist and inclusive," 20 for
which he gives two reasons. First, the benefits of immigration (such as
cheap labor or reunited families) are concentrated, while its costs (such as
increased social expenses or overpopulation) are diffused. That poses a collective action dilemma, in which the easily
organizable beneficiaries of concentrated benefits (such as employers or
ethnic groups) will prevail over the difficult-to-organize bearers of diffused
costs, that is, the majority population. Borrowing from J. Q.Wilson,
Freeman argues that immigration policy in liberal states is "client politics . .
. a form of bilateral influence in which small and well-organized groups
intensely interested in a poli21 develop close working relationships with
officials responsible for it." Taking place out of public view and with little
outside interference, the logic of client politics explains the expansiveness of
liberal states vis-à-vis immigrants. Second, the universalistic idiom of
liberalism prohibits the political elites in liberal states from addressing the
ethnic or racial composition of migrant streams. Freeman calls that the
"antipopulist norm." Its most potent expression is the principle of source
country universalism in the classic settler nations, which no longer screen
potential immigrants for their ethnic or racial fitness. The antipopulist norm
will induce elites to seek consensus on immigration policy and to remove
the issue from partisan politics.
As I shall argue, a domestic political process under the sway of client
politics is one reason why liberal states accept unwanted immigration. But I
suggest two modifications to Freeman's model. [End Page 270]
First, Freeman ignores the legal process as a second source of expansiveness
toward immigrants in liberal states. In fact, the political process is
chronically vulnerable to populist anti-immigrant sentiments --even in the
United States, as the Congressional anti-immigrant backlash in the wake of
California's Proposition 187 testifies. Judges are generally shielded from
such pressures, as they are only obliged to the abstract commands of
statutory and constitutional law. The legal process is crucial to explaining
why European states continued accepting immigrants despite explicit zero-
immigration policies since the early 1970s. In open opposition to a
restrictionist executive, which switched from elitist client politics to popular
national interest politics, courts invoked statutory and constitutional
residence and family rights for immigrants. In Europe, the legal rather than
the political process explains why states accept unwanted (family)
immigration.
In a second modification to Freeman's model, I suggest that there are
important variations in the processing of unwanted immigration not just
between the United States and Western Europe but within West European
states themselves. Freeman lumps together guest-worker- and postcolonial-
based immigration regimes and thus overlooks their different logics. In a
guest-worker regime, such as Germany's, the state at one point actively
lured (de facto) immigrants into the country, and thus is morally constrained
not to dispose of them at will once it decides upon a change of course. In a
postcolonial regime, such as Britain's, immigration was never actively
solicited but passively tolerated for the sake of a secondary goal--the maintenance of empire. Immigration policy is thus by definition a negative
control policy against immigration that at no point has been wanted.
Differently developed moral obligations toward immigrants in both regimes
(among other factors) help explain variations in European states' generosity
or firmness toward immigrants.
Discussing the two cases of illeg22 immigration in the United States and
family immigration in Europe, I suggest that liberal states are internally,
rather than externally, impaired in controlling unwanted immigration. The
failure of the United States to control illegal immigration, [End Page
271] particularly from Mexico, is due primarily to the logic of client politics
and a strong antipopulist norm that feeds upon America's
emphatic self-description as a universal "nation of immigrants" and upon the
civil rights imperative of strict nondiscrimination. In Europe, legal and
moral constraints kept states from pursuing rigorous zero-
immigration policies after the closing of new postcolonial and guest-worker
immigration in the late 1960s and early 1970s, respectively. Juxtaposing the
extreme cases of Germany and Britain, I further suggest that these
constraints were most unevenly distributed across Europe, partially
reflecting the different logics of guest-worker and postcolonial regimes.
Illegal Immigration in the United States
America's enduring incapacity to control illegal immigration is the root
cause of its heated immigration debate today. Before investigating this
incapacity, it is first necessary to destroy the public myth that the United
States has lost control over its borders. This myth, shared by policymakers
and academics alike, was powerfully established by the 1981 report of the
U.S. Select Commission on Immigration and Refugee Policy, U.S.
Immigration Policy in the National Interest. It stipulated that immigration
policy was "out of control," and that the containment of illegal immigration
had to be the first step in regaining control.
That perspective, stating a sequence of loss and recovery, is misleading;
there had never been a golden age of control. The problem of illegal
immigration is a by-product of the attempt to build a unified, national
system of immigration control, which no longer exempted Western
hemisphere immigration. The three-step effort entailed: (1) stopping (under
the pressure of domestic labor unions) the Bracero guest-worker program in
1964, which for more than two decades had provided Western growers with
cheap foreign fruit pickers; (2) establishing through the 1965 Immigration
Act a ceiling of 120,000 immigrant visas for the Western hemisphere, which
had formerly been exempted from numerical restrictions; and (3) applying,
in 1976, the Eastern hemisphere individual-country limit of twenty thousand
annual visas to Western hemisphere countries, which resulted in Mexico
instantly developing a severe visa backlog. Not a loss of control, but the
nationalization and standardization of U.S. immigration control is the proper
premise for understanding the origins of illegal immigration. Tellingly, apprehension figures--widely used as indicators of the stock and flow of
illegal immigrants--rose steeply after the end of Bracero in [End Page
272] 1964. They first crossed the one million mark in 1976, at the very
moment the first national immigration regime, which applied the same
control criteria to Eastern and Western Hemisphere countries, was
completed. Without belittling the physical dimension of a two thousand mile
land border that divides the First from the Third World, the problem of
illegal immigration is quite literally a social construction.
Given this caveat of a control that never was, and bracketing the physical
problem of policing an inherently difficult border, the incapacity of the U.S.
to stop illegal immigration is due to the logic of client politics, as predicted
by Gary Freeman. I will illustrate this, first, through the career of the 1986
Immigration Reform and Control Act (IRCA), and, second, through the
failure of the U.S. to establish effective immigration controls in the 1990s.
IRCA carried its restrictionist intention in its name. It turned out, however,
to be vastly expansionist, legalizing the status of three million illegal
immigrants in the United States, while failing to establish effective
measures against the inflow of new illegal immigrants. The influence of two
client groups is responsible for this outcome: ethnic and civil rights groups,
who argued and mobilized effectively against allegedly discriminatory
employer sanctions; and employers, particularly Western growers, who
pushed for a guest-worker program that became acceptable only through
adopting the features of a second, small amnesty for temporary workers.
In a settler nation, where nation building has coincided with immigration,
immigration policy is a highly institutionalized process, in which pro-
immigrant interests have a legitimate, entrenched role in policy-making.
During the first round of the six-year IRCA saga, which ranks among the
more embattled legislations of recent times, the opposition of Hispanic
interest groups to the introduction of employer sanctions was key to
preventing temporarily any legislation on illegal immigration. As
recommended by the Select Commission in 1981, the stick of employer
sanctions was to accompany the carrot of amnesty. Unless it was illegal for
employers to employ illegal workers--so reckoned the Select Commission--
the legacy of the infamous Texas Proviso was not to be beaten. 23 But
because Hispanics formed the majority of illegal immigrants in the U. S.,
any measure against illegal immigrants must have appeared as anti-
Hispanic. As Republican senator Alan Simpson of Wyoming, a
congressional leader of immigration reform [End Page 273] throughout the
1980s and 1990s, put it, "Any reference to immigration reform or control
turns out, unfortunately, to be a code word for ethnic discrimination." 24 In
their opposition to the "anti-Hispanic" employer sanctions, the Hispanic
lobby skillfully exploited the fact that even the slightest hint of ethnic or
racial discrimination was anathema in the era of civil rights. In fact, in the
battle over employer sanctions, Hispanics first emerged as a unified national force capable of blocking legislation detrimental to their perceived interest.
Twice, in 1982 and 1983, the Hispanic lobby succeeded in stalling the
House version of the Simpson-Mazzoli (immigration reform) bill after it had
won comfortable majorities in the Senate. Democratic House majority
leader Thomas P. (Tip) O'Neill caustically defended his refusal to hold a
vote on the second Simpson-Mazzoli bill in October 1983: "[I]t has to be
acceptable to the Hispanic Caucus." 25
The Hispanics were joined by civil rights groups, who feared that the
introduction of an employment verification system (dubbed a "national ID
card") would be detrimental to civil liberties in general, and lead to a
"culture of suspicion." 26 This perception was shared across the ideological
spectrum. A leading conservative columnist branded the introduction of an
ID card as "this generation's largest step toward totalitarianism," concluding
that "it is better to tolerate the illegal movement of aliens and even criminals
than to tolerate the constant surveillance of the free." 27In his refusal to have
a vote on the second version of the Simpson-Mazzoli bill, O'Neill struck a
similar chord: "Hitler did this to the Jews, you know. He made them wear a
28
dog tag." Against such wide opposition, which linked the civil rights
imperative of nondiscrimination with traditional American antistatism, the
plan of a standardized employment verification scheme had to be dropped.
A first severe crack in the control dimension of IRCA had been inflicted.
During the second round of IRCA, compromise-seeking agricultural
employers broke their initial alliance with the less compromise-prone ethnic
and civic groups, but demanded a guest-worker program as the price for
their support of an immigration control law. The growers' insatiable appetite
for cheap immigrant labor was equally disliked by Simpson, whose honest
but quixotic mission was to craft immigration law and policy in the national
interest: "The greed of the growers . . . is [End Page 274] insatiable. There
is no way they can be satisfied. Their entire function in life is that when the
figs are ready, the figs sho29d be harvested and they need four thousand
human beings to do that." A third, more drastic version of the Simpson
Senate bill, introduced in spring 1985, brought the moderate part of the
Hispanic lobby aboard by threatening to drop the amnesty provision
altogether. In this "final inning" of the Simpson-Mazzoli saga, 30the joint
energy of immigration control advocates and of the ethnic and civil rights
lobby focused on neutralizing the growers' initiative for a guest-worker
program. This initiative was spearheaded by the later immigration foe Pete
Wilson, then a Republican senator from California, who asked for an annual
contingent of 350,000 foreign workers to harvest perishable fruits for up to
nine months a year.
Interestingly, the idea of guest workers was liked by no one except the
growers, with the European negative experience firmly in mind. The
inevitable compromise with the growers thus had to consist of beefing up
the civil rights of the workers they asked for. Mediated by liberal Congressman Charles Schumer, the eventual compromise transformed the
guest-worker program into a second amnesty. The so-called Schumer
proposal, which became a part of IRCA, provided permanent-resident status,
and eventually citizenship, for illegal aliens who had worked in American
agriculture for at least ninety days from May 1985 through April 1986,
while granting the same possibility to "replenishment" workers in the future.
"For the first time in American history," said an exuberant Lawrence Fuchs,
"outsiders brought in to difficult, temporary jobs would be given the full
31
Constitutional protections and many of the privileges of insiders."
Signed into law in early November 1986, the Immigration Reform and
Control Act was certainly a "left-center bill," 32in which the control aspect
was barely visible. Putting to an end the Texas proviso, IRCA imposed a
sanction scheme on employers who knowingly hired illegal immigrants. But
in a concession to Hispanics and employers, sanctions would be abolished if
the General Accounting Office were to find discrimination or undue burdens
on employers in the future. Most importantly, IRCA included a far-reaching
antidiscrimination provision that [End Page 275] added the concept of
"alienage" to Title VII of the Civil Rights Act, prohibiting employment
discrimination on the basis of citizenship. This amounted to the "only
expansion of civil rights protection in the whole Reagan era." 33
Of IRCA's dual amnesty-sanctions agenda, only the amnesty component
worked as intended. Nearly 1.8 million illegal immigrants applied for legal
status under the general legalization program, and 1.3 million under the
small amnesty of the Special Agricultural Worker (SAW) program. But
IRCA failed to reduce the stock and flow of illegal immigrants. After a
temporary drop of apprehension figures in 1987 and 1988--attributable less
to the effectiveness of sanctions than to a wait-and-see response among
potential immigrants--by 1989 the illegal flow was back to pre-IRCA
levels.34 In 1993 the size of the illegal population in the U.S. was estimated
35
to be as high as ten years ago--between three and four million persons.
Why did IRCA fail to control illegal immigration? A major reason is a
toothless sanctions scheme, which resulted from the "odd coalition" pressure
by Hispanics and employers. 36 From early on, a good-faith clause had been
inserted into the Simpson-Mazzoli bill, which released employers from any
obligation to check the authenticity of employees' documents: a document
check conducted in good faith constituted an "affirmative defense" that the
respective employer had not committed the "knowing hire"
misdemeanor. 37In effect, employers were immune from punishment if they
filled out and filed away routine I-9 forms that attested to the document
check. Because the introduction of a national ID card had been blocked,
some twenty-nine documents--including easily faked U.S. birth certificates,
so-called breeders--served to satisfy the control requirement. The positive
affirmative-defense incentive was complemented by a negative
antidiscrimination incentive: demanding a specific ID constituted an "unfair immigration related employment practice." So employers were better off
accepting the document passively offered by the prospective employee. As
David Martin put it, [End Page 276] IRCA's sanctions scheme "tells
employers that it is more important to avoid even an appearance of
discrimination than it is to wind up employing unauthorized workers." The 38
civil rights imperative of nondiscrimination has obviously stood in the way
of effective immigration control.
As I would like to argue in a second step, even the anti-immigration
movement of the 1990s has been unable to do away with expansive client
politics. The inability of political elites to deal effectively with illegal
immigration provoked the biggest anti-immigrant backlash in seventy years.
In November 1994, Californian voters overwhelmingly passed Proposition
187, dubbed the "Save Our State" (SOS) Initiative, which would bar illegal
aliens from most state-provided services, including health care and
education. This was no less than a political earthquake. Transmitted by the
most conservative Congress in half a century, with both houses falling to
Republican control in the same November elections, the aftershock was
immediately felt in Washington. A sweeping overhaul not only of illegal,
but also of legal immigration seemed to be in the making, turning the clock
back before 1965, the legislative opening of America to mass immigration.
Two years later, the earthquake is reduced to a tremor. The planned
restriction of legal immigration has been shelved, perhaps indefinitely. Until
it was signed into law as the Immigration Control and Financial
Responsibility Act of 1996, an initially drastic proposal to combat illegal
immigration was watered down significantly. Once again, client politics
came in the way of "put[ting] the interests of America first." 39
It is no accident that the anti-immigrant earthquake had its epicenter in
California. Initially rural and peopled by the white farmers' flight from the
dust-bowl misery of 1930s Oklahoma, California not only lacks the "nations
of immigrants" nostalgia of the East Coast cities, with the Statue of Liberty
and other new world symbols, but more importantly, it also is the residence
of almost half of the estimated national total of four million illegal
immigrants. The Urban Institute calculated that they cost the state close to
$2 billion per year in education, emergency medical services, and
incarceration. Against this, the $732 million in state revenues from sales,
property, and income taxes on illegal aliens appear paltry. 40[End Page
277]
California epitomizes three problems of contemporary immigration to the
U.S.: its extreme regional concentration; the disproportionate costs incurred
by some state governments, while the main benefits in terms of federal taxes
and social security payments are reaped by the federal government; and the
increasing focus on immigration's negative welfare rather than labor-market
implications. Accordingly, the leaders of SOS and their staunchest
supporter, Republican governor Pete Wilson, went out of their way to stress that Proposition 187 was not about immigration control (which is the
prerogative of the federal government), but about a squeezed budget. The
budget crunch was real, given that California was just undergoing its most
severe economic recession since the first oil crisis, which resulted from the
post-cold war restructuring of the U.S. defense industry.
It was clear up front that Prop41ition 187, which openly defied the Supreme
Court ruling in Plyler v. Doe, would get stuck in local and federal courts.
However, also supported by one-third of Latino and the majority of Asian
and black voters, Proposition 187 was essentially a symbolic measure to the
political elites who had so recklessly evaded realities and responsibilities for
years. And if Congress picked up the ball at the national level (this was the
more than symbolic reasoning of the initiative leaders) the Supreme Court
might reconsider Plyler v. Doe and eventually uphold the restrictionist state
law.
Congress indeed picked up the ball without delay. A federal Commission on
Immigration Reform immediately proposed drastic changes of existing
immigration law and policy. Headed by Barbara Jordan, the former black
Congresswoman from Texas, and spiked by liberal pro-immigrant
politicians and academics, the commission in its final report in March 1995
recommended that legal immigration should be cut by one-third, the
extended family categories should be scrapped altogether, and employers
should find it more difficult and costly to hire foreign professionals.
Interestingly, the commission did not touch the nation-of-immigrants myth,
but stated that "the U.S. has been and should continue to be a nation of
immigrants." 42 But this proposal, supported also by the Clinton
administration, went even further than Proposition 187 and Governor
Wilson, who had targeted only illegal immigration. [End Page 278]
Regarding illegal immigration, the commission already in late 1994 had
advocated a national employment verification system, which would compile
the names and social security numbers of all citizens and legal aliens
authorized to work in the U.S. and make it mandatory for employers to call
it up before hiring new workers. The proposal stopped short of introducing a
national ID card, which continues to be anathema in the U.S. But,
predictably, it was seen by a plethora of ethnic, civil rights, and business
organizations as being just that: a national ID card in disguise. The
commission's recommendations were incorporated in similar House and
Senate bills, introduced by Lamar Smith, a Republican congressman from
Texas, and Senator Alan Simpson. Both bills centered around three
measures: cut legal immigration by slashing the nonnuclear family
categories and reducing skilled immigration; combat illegal immigration by
screening the workplace more tightly and fortifying the borders; and, in a
windfall from the parallel congressional effort of welfare reform, making
illegal and legal aliens ineligible for most public services. Hardly had the ink dried, when the machine of client politics was set in
motion. An unusually broad "Left-Right Coalition on Immigration" included
not just the usually odd immigration bedfellows of employers and ethnic
and civil rights groups, but also the Home School Network, a Christian
fundamentalist group rallying against the antifamily measures to curtail
legal immigration; Americans for Tax Reform, who disliked--along with
Microsoft, Intel, and the National Association of Manufacturers--to have
employers pay a heavy tax on each foreign worker they sponsored; and the
National Rifle Association, upset by the employment verification system (If
43
you're going to register people, why not guns? they shouted). Richard
Day, the chief counsel to the Senate Judiciary Subcommittee, characterized
this unusual line-up as "Washington groups" against "the American people,"
who had asked for "some breathing space" from immigration. 44 Such is the
logic of immigration as client politics.
The first success of the client machine was to split the omnibus bill in two.
The machine was helped in this by divisions within the Republican Party. A
large section of free-market and family-value Republicans (such as Jack
Kemp, William Bennett, and Dick Armey) favored legal immigration. In
addition, Republicans from California, where the problem of illegal
immigration was most pressing, feared that rifts over [End Page 279] legal
immigration would improperly delay the impatiently awaited crackdown on
illegal immigration. In March 1996, the Senate Judiciary Committee, with
the parallel House committee following suit, decided to postpone legislation
on legal immigration and to concentrate on illegal immigration first. The
"big one" had suddenly shrunk to a smallish immigration tremor. Only a few
months earlier, Republican Lamar Smith had boasted that "the question is no
longer whether legal immigration should be reformed, but how it should be
reformed." 45Now he lay flattened by the client machine. "Congress has
liste46d to lobbyists more than public opinion," wrote an angry immigration
foe.
After cracking the omnibus bill, the effort of the pro-immigration lobby
concentrated on smoothening some drastic features of the remaining bill on
illegal immigration. One target was the proposal for a mandatory,
nationwide, employment verification system, denounced by a libertarian
critic as "dialing '1-800 Big Brother.'"47An amendment by Senator Edward
Kennedy watered down the proposal, which was to be in place within eight
years, to a variety of voluntary pilot programs in high-immigration states, to
be reviewed by Congress after three years. The weakened proposal meant
that without new legislation, there would be no nationwide employment
verification system. This was an important step away from the
recommendation of the Commission on Immigration Reform, which had
called a mandatory national verification system the linchpin of combating
illegal immigration. In addition, an amendment by Senator Orrin Hatch, a
pro-immigration Republican from Utah, eliminated a hefty increase in fines against employers who knowingly hired illegal aliens--a victory for small
business owners.
When signed into law by President Clinton in early October 1996, the
"Maginot line against illegal immigration" 48looked more like a Swiss
cheese, with big holes eaten into it by America's clients of immigration
policy. The drastic Gallegly amendment in the House (named after its
sponsor, California Republican Elton Gallegly), which would allow states to
bar the children of illegal immigrants from public schools and thus would
turn into national law California's Proposition 187, was dropped from the
final bill, also because of a safe presidential veto.
A watered-down employment verification system is unlikely to fix the
biggest deficit in illegal immigration control, ineffective workplace [End
Page 280]screening and employer sanctions. The control impetus in the new
law thus boils down to stricter border enforcement; doubling the number of
border patrol agents to ten thousand by the year 2000: requiring the
Immigration and Naturalization Service (INS) to build a fourteen-mile long,
ten-foot high, triple-steel fence south of San Diego; and imposing stiff
penalties on the flourishing business of smuggling aliens into the U.S. This
only reinforces existing policy. As in its various border operations,
"Gatekeeper" or "Hold the Line," the Clinton administration had cleverly
preempted Republicans from monopolizing the immigration-control
discourse during the 1996 Presidential election campaign. It must be
conceded that, whatever means it chooses, the United States can perhaps
never expect to reduce illegal immigration to zero. As Peter Schuck
correctly noted, "A vast, prosperous nation with strong due process and
equal protection values and a 2,000-mile border with the Third World
cann49 eliminate illegal migration; it can only hope to manage
it." Chances are that the Immigration Control and Financial Responsibility
Act of 1996 will not be of much help in accomplishing this task.
Family Immigration in Europe
Whereas America's debate about illegal immigration is alive and evolving
every day, Europe's debate about family immigration is historically closed,
reflecting a fundamental difference in immigration on both sides of the
Atlantic. In the United States, immigration is a recurrent process. Not even
the most severe anti-immigrant backlash in the last seventy years has
managed to slam the Golden Door, and mass immigration (legal and illegal)
continues unabated. By contrast, Europe closed its doors to new
immigration over twenty years ago. Postwar immigration to Europe has
been a nonrecurrent, historically unique process, with immigrants acquired
not by will, but by default.
The family became the site for closing down guest-worker and postcolonial
immigration, torn between the opposite vectors of the individual rights of
migrants and the right of sovereign states to admit or reject aliens. In this,
European family immigration differs from American family immigration, which is defined in the language of quotas, not rights, and has become the
chief mechanism of acquiring new wanted immigrants. European states did
not actively solicit the belated arrival of the spouses and children, not to
mention the extended family, of its labor migrants. They had to accept
family immigration, recognizing the [End Page 281] moral and legal rights
of those initially admitted. In this sense, European family immigration is
unwanted immigration. As I shall argue, its acceptance can not be
understood in terms of client politics. There is no entrenched pro-
immigration lobby in Europe comparable to the United States. After the
shift to zero-immigration policies from the late 1960s to early 1970s, the
European politics of immigration became national interest politics. States
now uniformly disregarded their single strongest client, employers
interested in cheap foreign labor, and acted on behalf of collective goals
such as social integration or the integrity of nationhood. The immigration
that still occurred was as of right or morally tolerated immigration. It pitted
a state that would rather not see it happen against the immigrant who only
sought what liberal states cannot deny--family unity.
In handling family immigration, European states accepted a language of
primary and secondary immigration that is unknown in the United States.
Primary immigration is actively recruited, as in a guest-worker regime, or
passively tolerated in the absence of restrictions, as in a postcolonial regime.
Secondary immigration occurs after the recruitment stop or the introduction
of restrictions, in recognition of the family rights of primary immigrants. In
each European state there is a historically particular core of primary
immigrants, such as South Asians or Afro-Caribbeans in Great Britain or
Turks in Germany, for whom a specific, elaborate discourse of rights and
moral obligations evolves. This approach has allowed European states to act
humanely and generously toward those once admitted, while slamming the
door to everyone else. In this sense, the principle of source-country
universalism and the norm of not addre